Residency in Spain prior to using Surinder Singh route to UK

[nerjaron]

A couple of months back I posted regarding the Surinder Singh route for my Thai wife to eventually reside with me in the UK and I received some excellent advice. As I stated then I have a house and family in Spain so the requirement to live there for 3 months would not be a problem. As the start of the process, my wife attended the Spanish embassy in Bangkok today to apply for a Spanish Family visa with the intention of applying for a family permit once in Spain. However she has been told that there is a problem with our marriage certificate. The requirements for a Spanish Family visa (see attached) state, among other things:

"5.2. UK citizens must provide a document issued by British authorities recognizing the marriage to have the same legal effects as the UK law."

The full document is attached REG - Requirements for ESP-EU FAM ENGmod2jul.doc and I am a UK citizen. When we married in Bangkok last December part of the process entailed going to the UK embassy with a certified translation of our marriage certificate which was duly stamped by embassy officials. I would have thought that this would meet the above requirement but apparently not, therefore I am left wondering where I would obtain such a document and which of the "British authorities" would issue it. Can anyone throw any light on this please?

[bobrussell]

The British Embassy accepts proper Thai marriage as being fully legal. It does not require further validation.

This seems to suggest that a Thai marriage certificate should be acceptable without further validation by the UK authorities. Do they offer such a service anyway?

A certified translation is not the same as validation of the marriage but if in doubt you could contact the embassy.

Usually a translation certified by the Ministry of Foreign Affairs is needed for Schengen visas. I suppose you could try to get a document from the embassy confirming the UK authorities accept Thai marriage as legal. See https://www.gov.uk/marriage-abroad. Even this is a bit weak and feeble (like most of the .gov website), stating 'should be recognised in the UK'!

Sadly it sounds as if the Spanish authorities are making things up as they go!

[Donutz]

This is a well known issue with the Spanish. Officially they are in the wrong, they must accept ANY legal document that proofs that their is a genuine, legal marriage. ofcourse they may request an official translation into a language that they can understand. But it is most certainly NOT a requirement that the home country of the EU national acknowledges or even knows about the marriage. This is a silly rule that Spain made up. The Spanish Ministry fo foreign affairs is much aware but apparantly they do not bother correcting this unless you confront the Spanish MoFA.

The easiest is to comply with these silly requests and inform the EU Commission (via EU Home Affairs, if the EU receives numerous complains they will wake up and slap some sense into the Spaniards by investigating, so Always submit complaints). But the Commission is very slow and can take months to act.

Fast is to now contact the EU Ombudsman Solvit, found at the bottom of the page on visa/residency for EU nationals:

http://europa.eu/youreurope/citizens/travel/entry-exit/non-eu-family/index_en.htm

(the page on residency rather then short stay visa is somewhere on that website aswell but your are nnow mostly interested in contact Solvit, see near the bottom).

[bobrussell]

Solvit will provide legally correct advice by phone, email etc, usually within a few days. Print this out and attach it to your application (you can ask for it to be in Spanish!).

UKVI ignore the contents but it may be that the Spanish authorities have better reading skills!

[nerjaron]

Thank you bobrussell and Donutz, I wasn't aware of the Solvit solution and I shall most certainly give that a try.

[7by7]

The British Embassy accepts proper Thai marriage as being fully legal. It does not require further validation.

This seems to suggest that a Thai marriage certificate should be acceptable without further validation by the UK authorities. Do they offer such a service anyway?

A certified translation is not the same as validation of the marriage but if in doubt you could contact the embassy.

Under the Foreign Marriages Act 1899 (as amended) any marriage which is legal in the country where it took place is also legal in the UK.

No UK authority will issue a document to confirm that a foreign marriage is legal under UK law.

You cannot register a foreign marriage in the UK.

Couples, where at least one partner is British, used to be able to deposit their foreign marriage certificate with the General Registry Office in the UK for safekeeping, but doing so or not had no effect whatsoever on the legality of the marriage in the UK. That service was discontinued on 1 Jan 2014; mainly, I suspect, because so few people used it, we didn't.

[zombie]

My Thai wife got a 90 day Schengen visa from the Spanish embassy 3 months ago. To get it, we submitted our marriage certificate translated into English by a registered translator and stamped by the MFA. We also included the note from the British embassy/government website about how they accept foreign marriages,but can't validate them. I also had to give them a letter about how I was exercising my treaty rights by going to Spain to look for work. We went through the Spanish embassy, not VFS. I found the embassy takes a long time to reply to emails; it was two weeks before they replied to my first email.

[nerjaron]

Thank you all. Just to clarify, our marriage certificate WAS translated into English and stamped by the MFA. My wife was informed of the availability of a 3 month Schengen visa by the Spanish Embassy, but this is not the Family visa (which we are seeking), and I feel we are just being "fobbed off" because the tourist visa is easier for them. Furthermore, there is a charge for the tourist visa whereas the family visa is free - the cost is not the issue. The issue is that my wife will retire from her job and will not be able to return, so it is vital that we get it right first time and she qualifies for the residential status straight away. Obviously my wife is afraid that once she reaches Spain as a tourist she may be forced to leave again after 3 months.

Incidentally I contacted Solvit as suggested above and they have been in touch to ask for more information. Thanks again to all.

[nerjaron]

Hello again dear TV friends. This issue now has me very perplexed as I cannot make any headway at all. Incidentally I am still awaiting information from SOLVIT but I don't think even they will be able to resolve this. I am now in Bangkok to try to make some headway and I am coming up against brick wall after brick wall. I went to the Spanish Embassy yesterday and the clerk there began to tell me the same story that was previously told to my wife. I told the clerk that he was incorrect and showed him documents I had downloaded pertaining to the fact that the UK no longer requires overseas marriages to be registered and they would be regarded as legally valid provided they were legal in the country in which they were carried out.

The young man told me that he would have to consult with his supervisor but I could see from his demeanour that things were not looking favourable for me so I asked to see his supervisor. The Spanish consulate is a very small office in a multi-occupied high rise building and it turns out the "supervisor" is the Spanish Consul himself no less. I waited about 30 minutes before being shown into the Consul's office accompanied by a different member of staff. The Consul was very pleasant, and he showed me a circular from his government which made it clear that a verification document was required from all EEA member states and not just the UK. In other words the Consulate is following a directive given by the Spanish government and the problem rests with the refusal of the British government to provide a very simple letter to visa applicants in our situation.

Wishing to test the system I then went to the British Embassy and didn't even get through the front gate. The girl at the reception desk was well aware of this procedural nightmare and told me to try to "get something from the UK". There was no way I was going to get inside to pursue this. I am now at an impasse. It seems that the Spanish are rigidly enforcing this rule without exception and the British are steadfastly refusing to play ball, thereby denying me my right to have my wife live with me in any EEA country of my choosing, apart from the UK.

I can only see one solution to this problem but I wanted to seek the views of my TV friends first because my solution is rather drastic - the only possible way I can see out of this mess is to divorce my wife in Thailand, and remarry her in England when she comes for a holiday in December. Does anyone have any other suggestions?

[mgb]

Maybe you should ask the spaniards to show you that clause in the Real Decreto 240/2007.

As far as I know registration in the home country is only needed for civil partnership.

[Donutz]

Ask the Spanish consul to

A - contact the MFA in Madrid, who are aware that this is a BS rule that the Spanish made up in their own cooperation of Directive 2004/38 into the lawbooks (the MFA has been slapped on the wrist before by the EU for this).

B - Where in the directive this requirement can be found. They will not. As the directive only requires a legal and genuine marriage with no interest in the EU spouse his/her country having to be aware or confirm this.

C - After Solvit inform EU Home affaira aswell, they will takw weeks or a few months but if sufficient complaints are received the council will pick it up.

[7by7]

<snip>

Furthermore, there is a charge for the tourist visa whereas the family visa is free......

As you are an EEA (British) national than any Spanish visa for your wife should be free; provided she is travelling with or to join you.

[nerjaron]

Thank you all for your further advice - I shall certainly pursue these lines and let everyone know what happens. 7by7 this was also my understanding but when I was at the Spanish Embassy they confirmed that we would not only have to pay for the visa, but that they would require sight of a return ticket back to Thailand for my wife. On the one hand they are telling me that the ordinary Schengen visa is all that we require to get my wife to Spain but on the other they are slapping on a list of additional requirements, not to mention that somewhere along the line, once we are in Spain some Spanish official will ask for the declaration from the UK that our Thai marriage has the same legal effect etc. etc. etc.

[cornishcarlos]

Why don't you apply for a Shengan visa at another embassy that is more accommodating ? Once in Spain, I'm sure she can get residents status with you ?

[mgb]

@nerjaron

You need a legalisation of your marriage certificate for spain anyway.

First step should be to let do the Spanish Embassy the legalisation for spain.

After that I don't think they will deny their own work for a visa application.

[7by7]

I understand that, like most if not all the other Schengen states, the Spanish require legalisation of the translation of the marriage certificate by the Thai MFA.

But the actual marriage certificate itself is already a legal document.

Which is why the British embassy wont 'legalise' it!

I suspect the Spanish will say the same; but it wont hurt to ask.

I'm not sure what their problem is anyway.

If they recognise the marriage, which they should do, then your wife qualifies as your family member under the directive and so should be allowed the same freedom of movement rights as yourself; including no charge for a visit visa and no requirement to show a return ticket etc.

That they may be concerned the UK wont recognise your marriage and so wont allow her into the UK as your spouse is

• a) ridiculous and
• b ) no concern of theirs anyway; their concern is whether or not she can legally enter Spain, which she can.

I suggest you follow Donutz's advice above.

It may not help you in this instance, but if enough complaints are made and so the Spanish keep getting censured by the Commission then they may start to follow the rules.

[mgb]

Precondition for a residence card in Spain is a legalised marriage certificate.

It makes no sense to travel to Spain without one in the luggage.

A thai certificate get legalised from the spanish Embassy in Thailand for a usage in Spain..

[nerjaron]

All, to recap, as stated in my original post above, the specific requirement of the Spanish Embassy is: "5.2. UK citizens must provide a document issued by British authorities recognizing the marriage to have the same legal effects as the UK law".

The Spanish Embassy staff are well aware that my Thai marriage is legal but for some reason they are being pedantic in insisting on this damn document. Equally the British Embassy are being just as pedantic in refusing to issue the required letter and my wife and I are the piggies in the middle left out in the cold by the pathetic antics of both Embassies. Both sides are fully aware of the impasse they have created and neither will budge. I have already considered applying to another country but to get my wife into the UK via the Surinder Singh route I will have to prove that I had made that other country my "centre of life" and obtain a residency permit for my wife, at which point I suspect I will come up against the same brick wall of needing a document from the British authorities etc. etc.

Frustrating, infuriating, sickening to know that the UK has opened her borders to all and sundry coming through Europe for an easy life on tax payers money and I am having to jump through hoops to qualify for MY human rights as a UK citizen. There really is something very wrong with the system over there and it seems I can't do a damn thing about it other than divorce my wife in Thailand and remarry her in the UK. Pathetic.

[7by7]

I understand your frustration; but it is the Spanish to whom you are applying so it is the Spanish who need to recognise your marriage as legal under Spanish law, it is the Spanish who are not applying the regulations correctly, it is the Spanish who are breaking EU law by demanding a document which does not exist.!

Under the freedom of movement regulations, whether or not the UK recognises your marriage (which it does) is irrelevant to any application you and your wife make to live in Spain!

As for your last paragraph; three points.

1) EEA migrants entering the UK; any migrant entering the UK, does not have "an easy life on tax payers money." Check the facts rather than what papers like the Mail and Express say!

2) You rage against the EEA freedom of movement regulations when used by others; yet you wish to use those same regulations to first live in Spain and then move to the UK! Sauce for the goose and all that.

3) There is, of course, no need to divorce your wife and then remarry her in the UK; she could apply for a UK settlement visa.

From your previous topic it appears that the main (only?) reason you have for following the Surinder Singh route via Spain is to avoid paying the fees such an application would incur!

[Trevor1809]

it appears that the main (only?) reason you have for following the Surinder Singh route via Spain is to avoid paying the fees such an application would incur!

Which let's face it aren't insignificant, especially bearing in mind it doesn't stop at the settlement visa, there is the FLR and the ILR stages. Throw in may be a rejection as well then having to go to appeal.

I could certainly have done without the thousands that getting my wife to the UK and keeping her here is costing me. I don't think anybody begrudges migrants coming here I just wish that sometimes we had the same rights.

I thought with Surinder Singh you have to have worked in the EU country. Is that not the case?

[bobrussell]

Surinder Singh is a bit more complex that working in another EU country. You need to apply for residence and demonstrate that family life is based ('Centre of life') in that country.

https://www.gov.uk/family-permit/surinder-singh

Don't expect this route to be plain sailing either. The UK choose to interpret rules how they wish and are happy to change the interpretation at will. To get round this it may be necessary to go to appeal with everything that entails. The rules are clear but not necessarily followed appropriately as you have found with the Spanish authorities.

Not sure much more can be offered beyond sending a copy of the UK rules on marriage validity with the application. The UK accepts legal Thai marriages as valid, they do not feel the need to certify this (and actually seem to refuse to do so). The Spanish require them to do something they will not do!

A real 'Catch 22' situation. Perhaps the Embassy or Home Office will send a letter confirming that Thai marriages are considered valid but will not certify individual certificates. I can understand the reluctance. To certify a marriage valid they would have to have a mechanism to check the marriage actually took place, this would be time consuming and expensive therefore not going to happen!

I suspect freedom of movement rules are likely to be more of an issue with reintroduction of border controls.

[nerjaron]

Yes I was rather "sounding off" in my previous post for which I apologise but I think my frustration demonstrates the hopelessness I am feeling. One small point 7by7, I was not referring specifically to EEA migrants, I am concerned at the whole migrant situation, especially the likelihood that a percentage of the migrants/refugees are reported to be ISIS members seeking to wreak havoc throughout Europe/the world.

I do take your points, and you are quite correct that I am seeking to use the Surinder Singh route to avoid not only the crippling charges (remember I am a pensioner on a very limited income and I cannot meet the £18,600 requirement) but also to avoid the uncertainty of whether my wife's application may fail under some other part of the regulations. Trevor1809 hits the nail on the head. Incidentally Trevor1809 there was a later test case in which a retired person also won his case to pursue the Surinder Singh route.

Thanks for your input bobrussell. I actually own property in Spain and I have family (daughter + children) who have lived there for many years so it would be easy for me show that my "centre of life" is there. The Spanish are not asking anyone to certify our marriage, they are simply asking for a letter which states that a marriage in Thailand (any marriage) has the same legal effect (status) as a marriage similarly conducted in the UK. They already know this to be the case which is why I am so frustrated. 7by7 makes this point admirably, but I feel reluctant to go back to the Spanish Embassy since the Consul himself received me in his office last week to explain that he is acting on a directive from above. I hope to receive something back from SOLVIT before I return to the UK and I will update you all of any developments.

Once again, thank you all very sincerely for your help and interest in my case.

[7by7]

it appears that the main (only?) reason you have for following the Surinder Singh route via Spain is to avoid paying the fees such an application would incur!

Which let's face it aren't insignificant, especially bearing in mind it doesn't stop at the settlement visa, there is the FLR and the ILR stages. Throw in may be a rejection as well then having to go to appeal.

I could certainly have done without the thousands that getting my wife to the UK and keeping her here is costing me.

I agree, and have posted often, that the fees charged by UKVI, and set by the government, are extortionate. Using the government's own figures, in nearly all categories they are set at two, three even four times above cost!

I don't think anybody begrudges migrants coming here I just wish that sometimes we had the same rights.

You do, whether under the EEA freedom of movement regulations or the UK immigration rules.

The freedom of movement regulations apply to all EEA nationals and all EEA states, plus Switzerland. But do not apply when the EEA national and their family members are moving from outside the EEA to the member state of which the EEA national is a citizen.

Were the OP Spanish and wanted his wife to move directly from Thailand to Spain then she would be subject to the requirements of the Spanish immigration rules and have to pay whatever fees for the initial visa and up to permanent residence that the Spanish government require.

Whereas they could use the EEA regulations to come to the UK, The UK would not require any of this nonsense about getting the Spanish government to issue a document recognising their Thai marriage, either.

Then, once they have lived in the UK long enough to satisfy the Spanish authorities, they could use the Surinder Singh route to move to Spain.

All that may seem obvious, but it's surprising how many times people seem to forget it.

The Thai, or any other non EEA nationality, spouse, partner, child, etc. of a British citizen who has settled in the UK, or wishes to, has exactly the same rights, or lack of, as any other non EEA national doing the same.

All non EEA national migrants entering the UK, whether to settle or just temporarily, have to meet the relevant criteria of the immigration rules or, if they qualify, the EEA regulations.

Even asylum seekers; and the life of an asylum seeker in the UK, even if they are not banged up in an immigration detention centre, is no bed of roses!

I thought with Surinder Singh you have to have worked in the EU country. Is that not the case?

A case in the ECJ ruled that the EEA national is only required to have been exercising any treaty right* in the other EEA state in order for their family members living there with them to qualify under the Surinder Singh judgement.

Unfortunately, although the UK government has implemented other parts of that judgement, most notably the 'centre of life' part, they have yet to implement this bit, and still insist that the British national has been working, employed or self employed, in the other member state.

As far as I am aware, that is the only part of the regulations which the UK does not fully comply with; but could be wrong.

Also, as seen in this topic and others, the UK is by no means the only member state which picks and chooses which parts of the regulations it's going to comply with and which parts it's going to ignore!

* Student, job seeker, worker (employed or self employed), living on independent means (e.g. a pension).

[Trevor1809]

I don't think anybody begrudges migrants coming here I just wish that sometimes we had the same rights.

You do, whether under the EEA freedom of movement regulations or the UK immigration rules.

Clearly we don't have the same rights as an EU citizen could come to the UK with a non EU partner and not earn £18600 pa. A UK citizen earning less than £18600 had no right what so ever to bring a non EU partner to the UK.

Trenton Oldfield also has the right to remain despite serving a prison sentence.

[Richard W]

I can only see one solution to this problem but I wanted to seek the views of my TV friends first because my solution is rather drastic - the only possible way I can see out of this mess is to divorce my wife in Thailand, and remarry her in England when she comes for a holiday in December. Does anyone have any other suggestions?

You don't need to divorce her first, at least, not unless the law's changed in the past ten years. Registrars don't like marrying married couples, but they can be persuaded to do it. You may be obliged to advise UKVI/ECO of your intention to marry in the UK on her visit.

If you subsequently divorced in the UK, which is all too likely, I don't know if the court would accept the resulting British marriage certificate for the divorce.

[7by7]

I don't think anybody begrudges migrants coming here I just wish that sometimes we had the same rights.

You do, whether under the EEA freedom of movement regulations or the UK immigration rules.

Clearly we don't have the same rights as an EU citizen could come to the UK with a non EU partner and not earn £18600 pa. A UK citizen earning less than £18600 had no right what so ever to bring a non EU partner to the UK.

Trenton Oldfield also has the right to remain despite serving a prison sentence.

You have obviously failed to understand my post in it's entirety or, far more likely, chosen to ignore the bulk of it.

Not sure what your point is in bringing up Mr Oldfield.

He was convicted of a public order offence. A total pratt, but hardly a danger to public safety or national security!

Non British citizens are subject to an automatic deportation order if they are convicted of a criminal offence and given a prison sentence of 12 months or more. Mr Oldfield was sentenced to 6 months.

The judge can recommend deportation, even when the sentence is less than 12 months; with some exceptions such as the convicted person being a Commonwealth citizen. Mr Oldfield, being an Australian, is a Commonwealth citizen.

The Secretary of State can make a deportation order; which is what happened in Mr Oldfield's case.

Any deportation order, whichever route it was arrived at by, can be appealed.

Mr Oldfield did so and won his appeal; one of the reasons for his victory being that he is married to a British citizen.

Are you saying that he shouldn't have won and he should have been deported?

If so, then you are also saying that you would accept your wife being deported were she to be arrested and convicted of a public order offence after making a peaceful, though disruptive, political protest!

Or would you want to make a successful appeal against that decision so she could remain in the UK with her British spouse and family; as Mr Oldfield did?

.

[nerjaron]

Thank you Richard W. One of the enquiries I have made by email since I have been here in Bangkok was to a registrar covering my home district in England. Their response was that to marry my wife in the UK when I am already legally married would be illegal, but the feeling I got from the way they responded was that they were only covering their backs by giving their stock answer. I shall certainly investigate this in more detail when I go back to the UK in a couple of weeks (with a different registrar of course!).

[7by7]

Your local registrar is correct; you cannot marry again in the UK if you are already legally married. You can have a ceremony, but you wont sign the register and you wont get a legal marriage certificate.

Although some registrars, or at least their staff, do seem confused over this point.

Maybe a letter from your local registrar confirming that they cannot marry you because you are already legally married, or even just a copy of the email they sent you, will satisfy the Spanish embassy?

Worth asking the embassy, surely?

[Tony M]

Not really sure where you are with your marriage certificate problem, but I do recall someone getting their Thai marriage certificate apostilled in order to get a Spanish visa. If that might work for you, have a look at ( I apologise, but I haven't had time to read all of the thread in detail):

http://www.hagueapostille.co.uk/hague-apostille-legalisation-service

http://www.apostillelegalisation.co.uk/

https://www.google.co.th/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=convention+12+of+the+hague+convention+signatories

[nerjaron]

Hello again friends. Thought I would let you know progress (or lack of) with this case. I am literally tearing my hair out. Tony M - I hadn't heard of this and I logged on to one of the links. They had one of those instant conversation facilities and I explained my plight. The person I spoke to suggested I try a solicitor - it was clear that this service only applies to British documents. I told him I had tried 2 solicitors who weren't interested and suddenly the conversation was terminated by him! I would be interested if you could post any further information on the person who actually got a Thai marriage certificate apostilled.

Anyway on with my story. I eventually heard back from SOLVIT who said they had been unable to resolve the position with the Spanish even though they (SOLVIT) disagreed with the Spanish stance, so once again I was left out in the cold. I wrote again to my MP who again took up the matter with the Overseas Residential Services Unit at the FCO. They came back to me at the end of December to say that the Spanish Embassy had denied that my wife had ever applied for a visa!! This despite the fact that I was personally interviewed by the Spanish Consul in his office. Another letter from the FCO suggested that only the courts in England and Wales can "recognise" a marriage undertaken in another country so off I went to my local County Court and yes, you've guessed it, they refused to help.

I really am distraught over this matter and divorcing my wife seems to be the only way forward but she and her family, who don't really understand, think I am up to no good and they are against a divorce. I wish I could bring my wife straight to the UK but as I have stated previously my income is nowhere near the £18,600 minimum threshold so that door is closed to me. Does anyone have any other suggestions?